United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Rossiter, Jr. United States District Judge
matter is before the Court on defendants ECO Health Inc.
(“ECO”), EHL Inc. (“EHL”), and
Michael E. Kovacs's (“Kovacs” and
collectively, “defendants”) Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(2) and (6)
(Filing No. 13). The deadline for opposing the motion passed,
and Plaintiff Steven Denenberg, M.D., (“Dr.
Denenberg”) did not file a response to this motion.
Instead, on November 6, 2018, twelve days after the deadline
to respond and without any leave of court, Dr. Denenberg
filed an affidavit which he characterized as a response to
the defendants' motion (Filing No. 21). For the reasons
stated below, Dr. Denenberg will be granted leave to amend
his Complaint to allege facts showing the Court has personal
jurisdiction over the defendants.
Denenberg is a plastic surgeon residing in Omaha, Nebraska,
who maintains an internet website named Facialsurgery.com,
which displays photographs of patients before and after
plastic surgery performed by Dr. Denenberg. Kovacs is a
resident of California and the President of both ECO and EHL,
which are California corporations with their principal places
of business in California. Kovacs, through ECO and EHL,
apparently sells products meant to improve people's
Denenberg's Complaint (Filing No. 1), he alleges the
defendants “infringed upon . . . [the] photographs from
Dr. Denenberg's website, and posted said photographs on
the websites, and in the emails, and in other venues that
Defendants employed to market their products, representing
the improvement seen in the photographs as the result of use
of their products.” According to Dr. Denenberg, his
photographs are registered with the United States Patent and
Copyright Office and he has never given another physician or
entity permission to use them. Dr. Denenberg attached as
Exhibit A to his Complaint the photographs from his website
that he alleges the defendants misappropriated. Dr. Denenberg
indicated he would also attach the photographs as they were
allegedly used by the defendants but did not. Dr.
Denenberg's Complaint provided no further detail on how,
when, or in what manner the defendants allegedly
misappropriated his photographs, or how he discovered that
the defendants used his photographs.
Denenberg asserts five claims against the defendants under
the following statutes: (1) the Lanham Act, 15 U.S.C. §
1125(a), et seq., (2) the Copyright Infringement and
Remedies Act, 17 U.S.C. § 501 et seq., (3) the
Digital Millennium Copyright Act, 17 U.S.C. § 1201
et seq., (4) the Nebraska Uniform Deceptive Trade
Practices Act, Neb. Rev. Stat. § 87-301 et
seq., and (5) the Nebraska Consumer Protection Act, Neb.
Rev. Stat. § 59-1602 et seq. Dr. Denenberg
seeks statutory damages, costs and attorney fees, injunctive
relief, corrective action by the defendants to address
“any erroneous impressions persons may have
derived” from the alleged misappropriations, and other
defendants maintain they have no direct connections to
Nebraska and note Dr. Denenberg's Complaint did not
describe the nature of the alleged misappropriations or their
relationship with Nebraska. Dr. Denenberg's affidavit did
elaborate on these crucial details, where he asserted his
website and its contents were created in Nebraska and that
his website clearly indicates its owner is located in
Nebraska. Further, his affidavit described the manner in
which the defendants used his photographs, including that the
defendants sent him an email in Nebraska that advertised
their products while displaying his photographs. Dr.
Denenberg's affidavit does not comply with NECivR 7.1(b)
or serve as a response to the defendants'
motion. The Court is concerned, however, with the
deficiencies in Dr. Denenberg's Complaint itself, so Dr.
Denenberg will be given leave to amend his Complaint.
defendants move the Court to dismiss this action for lack of
personal jurisdiction. The party seeking to establish the
Court's in personam jurisdiction bears the burden of
proof but needs only make a prima facie showing of
jurisdiction. Viasystems, Inc. v. EMB-Papst St. Georgen
GmbH & Co., KG, 646 F.3d 589, 591 (8th Cir. 2011).
Because Nebraska's long-arm statute extends jurisdiction
over nonresidents to the maximum extent permitted by the Due
Process Clause of the Fourteenth Amendment of the U.S.
Constitution, see Neb. Rev. Stat. § 25-536;
Wagner v. Unicord Corp., 526 N.W.2d 74, 77 (Neb.
1995), this Court must consider whether exercising personal
jurisdiction would comport with due process,  see Epps v.
Stewart Info. Servs. Corp., 327 F.3d 642, 647 (8th Cir.
process “requires sufficient ‘minimum
contacts' between the defendant[s] and the forum state so
that ‘maintenance of the suit does not offend
traditional notions of fair play and substantial
justice.'” Id. (quoting World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92
(1980)). The key question is whether the defendants
“purposely availed [themselves] of conducting
activities within the forum state and thereby invoked the
benefits and protections of its laws.” Steinbuch v.
Cutler, 518 F.3d 580, 586 (8th Cir. 2008). The inquiry
“focuses on the relationship among the defendant[s],
the forum, and the litigation.” Walden v.
Fiore, 571 U.S. 277, 284 (2014) (quoting Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 775 (1984)).
intentional tort is alleged, the “effects test”
derived from Calder v. Jones, 465 U.S. 783, 789-90
(1984), applies. Under the effects test, specific personal
jurisdiction exists where a party intentionally and expressly
aims an act at the forum knowing that the “brunt of the
injury” will be suffered there such that they can
reasonably foresee being haled into court in the forum state.
See Johnson v. Arden, 614 F.3d 785, 796 (8th Cir.
defendants note this district has previously considered
similar claims asserted by Dr. Denenberg against nonresidents
and determined personal jurisdiction existed under the
effects test. See, e.g., Denenberg
v. Ruder, No. 8:05CV215, 2006 WL 379614 (D. Neb. Feb.
15, 2006) (finding personal jurisdiction over a party that
allegedly misappropriated content from Dr. Denenberg's
website when he alleged his website and its content were
created in Nebraska and that his copyright certificate of
registration and website noted the owner was located in
Nebraska). But see Denenberg v. Ruder, No.
8:05CV215, 2005 WL 3556410, at *3 (D. Neb. Dec. 28, 2005)
(finding no personal jurisdiction where Dr. Denenberg did not
allege where his website or its information was created or
how the website's information would cause a defendant to
anticipate being haled into a Nebraska court). Here, Dr.
Denenberg's Complaint has not alleged sufficient facts to
state a prima facie claim for personal jurisdiction under the
effects test or otherwise.
Dr. Denenberg's Complaint does not allege that his
website was created in Nebraska or contained any information
indicating some relationship to Nebraska. Dr. Denenberg
failed to state how or where the defendants allegedly used
his photographs beyond vaguely stating his photographs were
employed to market the defendants' products. He offers no
facts showing the defendants' marketing efforts
specifically targeted or were directed to Nebraska, that any
of the defendants' customers or mail or email recipients
were from Nebraska, or that the defendants profited from,
advertised in, or otherwise exploited Nebraska markets.
Simply put, Dr. Denenberg has failed to allege any
relationship between this suit and Nebraska beyond the fact
that his business is organized and principally located in the
state, and he has not given any reason why the defendants
should have reasonably anticipated being brought into
Nebraska court based on the facts in this case. See
Bridgeport Music, Inc. v. Still N the Water Pub., 327
F.3d 472, 482-83 (6th Cir. 2003) (reaching the same
conclusion on similar facts in an infringement case);
Ruder, No. 8:05CV215, 2005 WL 3556410, at *3-4
there is no basis from which to determine this Court has
personal jurisdiction over the defendants. However, the Court
finds Dr. Denenberg's Complaint is susceptible to
amendment, so Dr. Denenberg will be given leave to amend his
Complaint to allege facts showing the Court has personal
jurisdiction over the defendants within seven (7) days from
the date of this Order. If Dr. ...